Abdul Malik Ishak J:

Introduction

This is an appeal by the judgment creditor [Multi-Purpose Finance Berhad (formerly known as Magnum Finance Berhad)] in encl. 22A against the decision of the senior assistant registrar dated 1 October 1998 which allowed the judgment debtor's (Tan Ah Poi's) application in encl. 17 to set aside the bankruptcy notice issued by the judgment creditor against the judgment debtor.

The relevant enclosures that would be referred to in this judgment would be as follows:

(1) the notice of appeal in encl. 22A;

(2) the request to issue a bankruptcy notice in encl. 2;

(3) the bankruptcy notice itself in encl. 3;

(4) the summons in chambers by the judgment debtor to set aside the bankruptcy notice in encl. 17;

(5) the affidavit in support of the judgment debtor in encl. 16;

(6) the affidavit in reply by the judgment creditor in encl. 19; and

(7) the additional affidavit affirmed by Mr. Mathews George, the judgment debtor's solicitor, in encl. 20A.

The Factual Matrix

This would be divided into three parts:

First Part

It revolves in the Sessions Court. This was the beginning of the nightmare for the judgment debtor.

In 1992, the judgment creditor filed a civil suit in the Johor Bahru Sessions Court vide summons no: 52-60-90-3 claiming against the judgment debtor and another for payment of the sum of RM49,222.30 together with interests and costs. Basically, the judgment creditor's claim against the judgment debtor was in respect of a hire purchase transaction where the issue was focussed on whether the judgment debtor was a party to the fraud and it was argued at the full trial before the Sessions Court. The judgment creditor's claim against the judgment debtor was dismissed by the Sessions Court and an appeal was eventually filed before the High Court.

Second Part

The scenario has shifted to the High Court. The appeal was eventually heard by the High Court vide civil appeal no: 12-27-1994 sometime in 1995 wherein the decision of the Sessions Court was reversed and judgment was entered against the judgment debtor. Victory finally went to the judgment creditor. Being aggrieved and dissatisfied with the High Court's decision, the judgment debtor lodged an appeal to the Court of Appeal vide appeal no: J-08-472-1996.

Third Part

This involves the Court of Appeal. The judgment debtor's application for leave to appeal to the Court of Appeal was allowed on 3 November 1997. At the time of writing this judgment, the Court of Appeal has yet to give a date for the hearing of the appeal proper.

Bankruptcy Notice

The factual background involving these three courts go a long way in understanding the position of the judgment creditor who like any successful litigant was eager to taste the judicial fruits of success (Punca Klasik Sdn Bhd [1996] 4 MLJ 533). Thus, relying on the High Court judgment, the judgment creditor proceeded to issue the bankruptcy notice against the judgment debtor. The bankruptcy notice duly served on the judgment debtor on 14 July 1997 by way of substituted service. The judgment debtor must have seen the advertisement in the Chinese daily - the Sin Chew Jit Poh dated 7 July 1997, and without furtherado, the judgment debtor swiftly filed encl. 17 to set aside the bankruptcy notice.

By encl. 17, the judgment debtor sought, inter alia, to:

(a) stay the bankruptcy proceedings pending the hearing of the appeal to the Court of Appeal; or alternatively to,

(b) set aside the bankruptcy notice.

Agreed Issue

The parties were very magnanimous and they agreed to argue on only one crucial issue, namely:

Whether the High Court judgment, which is pending appeal before the Court of Appeal, is a final judgment within the meaning and purport of section 3 (1)(i) of the Bankruptcy Act, 1967?

By all counts, the judgment debtor is a strategist. By filing an appeal to the Court of Appeal the judgment debtor was indirectly derailing the bankruptcy actions contemplated by the judgment creditor.

It wo